Negligence Flashcards
Name the stages of negligence
Negligence has a three stage test:
- Did the D owe a duty of care?
- Was this duty breached?
- Did the breach cause damage to the C?
Stage 1 of negligence
Firstly it must be proved that the D owes the C a duty of care. If there is an obvious relationship (E.G doctor/ patient) then it is obvious that a duty is owed (Robinson), and the Campari test is not necessary. If not obvious then fully apply the Caparo test
Full test for stage 1 of negligence
- If duty is obvious - Robinson
- If duty is not obvious- three stage Caparo v Dickman test
1- Was loss/ damage to the C reasonably foreseeable (Kent v Griffiths)
2- Was there a relationship of close proximity (Bourhill v Young )
3- was it fair, just, and reasonable to impose a duty upon the D (Hill v Chief constable of West Yorkshire police ) - Side rule- Robinson- the police owe a duty of care to avoid causing, by a positive act, foreseeable personal injury to another person.
Stage 2 part 1 of negligence
- Firstly, consider what characteristic the D falls under ( this will be the standard to judge whether they acted reasonably).
- If the D is an expert or possesses a particular skill, then they will be judged by the standards of other reasonably competent professionals (Bolam/Bolitho)
- If d is inexperienced or a learner, then they will be judged by the standards of someone experienced and competent (Nettleship vs Weston)
- Children are judged by the standards of a reasonable child of a similar age (Mullins vs Richards)
Stage 2 of negligence
- The D must have breached the duty of care to the C
- Anderson B in ( Blyth vs Birmingham Waterworks) defined a breach as “Doing something the reasonable man would not do, or not doing something that the reasonable man would do”.
- Apply relevant standard of testing (Cild/Learner/expert)
-Apply all of the risk factors
-Conclude stage 2
Stage 2 part 2 of negligence
-Apply the risk factors- These can r or raise the standard of care required of the reasonable person.
1- Probability of harm- More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against very small risks, but does against bigger risks, or risks that are more likely to happen (Bolton vs Stone)
2- Seriousness/magnitude of the risk - How serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken (Paris vs Stepney council)
3- Cot and practicality of the precautions. If the cost of taking the precautions to eliminate the risk is too greats, the D may not be in breach of duty (Latimer)
Side rule for end of stage 2 of negligence
- Possible benefit of the risk- There are some risks which have benefits to society, here there will be no breach (Watt vs Hartfordshire council
Stage 3 of negligence intro and summary
- Itmust be proved that the breach of duty has caused the damage to the C. This is an issue of causation
- Factual causation (Barnett vs Chelsea hospital)
-Legal causation- remoteness of the damage (Wagon mound no.1) - Must be no intervening acts which breaks the chain of causation - Thin skull rule (Robinson vs Post office/ Smith vs Leech brain co)
- Conclude stage 3 and all three stages.
Negligence stage three part 1
-Factual causation asks was the D the cause of the damage in fact, so apply the “but for” test
- “But for the D’s actions, would the damage have occurred anyway ? (Barnett vs Chelsea Hospital )
Negligence stage 3 part 2
- Legal causation- relates to the remoteness of the damage, meaning whether the damage to the C was reasonably foreseeable or was it too remote. If the damage was unforeseeable, then it my be too remote for the D to be the cause in law (Wagon Mound No1)
- Side rule- D need not predict the precise way in which the injury was caused so long as injury of the same type was foreseeable (Hughes vs Lord Advocate)
Negligence stage 3 part 3
- There must be no intervening acts which break the chain of causation.
- Thin skull rule- (Robinson v Post office/ Smith vs Leech Brain Co): The D must take his victim/ claimant as he finds them.
Negligence risk factor 1
Probability of harm- More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against smaller risks, but does against bigger risks, or risks that are more likely to happen (Bolton vs Stone)
Negligence risk factor 2
Seriousness/ magnitude of the risk- The court needs to consider how serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken (Paris vs Stepney Council)
Negligence risk factor 3
The cost and practicality of the precautions. If the cost of taking precautions to eliminate the risk is too great, the D may not be in breach of duty (Latimer)
